Supremes Hand Zubik v. Burwell Mess Back to Little Sisters of the Poor, U.S. Catholic Bishops, and Obama Administration: Good Commentary

As the Supremes hand the Zubik v. Burwell mess back to the Little Sisters of the Poor, the U.S. Catholic bishops, and the Obama administration — despite seven of eight lower court rulings which have found that the spurious "religious freedom" complaint of the bishops hiding behind the habits of the sisters are entirely confected, here's some commentary I've found worth reading:

Is it the habits? The crosses? What is it about the Little Sisters of the Poor that seems to have the power to cloud the mind of the Supreme Court? If you substituted any other word for "contraception" in the now endless series of challenges to the Obama administration’s contraceptive mandate, the outcome of the latest ruling would be unimaginable.

And then she goes on to observe,

It's hard to think of any other issue other than women's reproductive health where the Supreme Court would be so deferential and willing to punt. In fact, it announces proudly in the brief that it "expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened." . . .

It's as if in Brown v. Board of Ed the Supreme Court had recommended that Oliver Brown and the Topeka Board of Education just go home and work out a compromise to the whole segregation thing. Kind of makes me miss Scalia; at least we knew where he stood.

The Court's per curiam "decision" in Zubik v. Burwell, announced Monday, is the latest evidence of its slide toward paralysis. Zubik, one of the most closely watched cases of the 2015-16 term, was a religious-freedom challenge by a group of religious non-profits to the Affordable Care Act's contraceptive mandate. Under regulations issued by the Department of Health and Human Services, the non-profits were required to notify the government that they object to providing their employees with insurance coverage for contraceptives. The government would then order the non-profits' insurers to provide the coverage as part of the employee policy, at no cost to the employer.

It's a very substantial accommodation—so serious, in fact, the Court itself, in the 2014 case of Burwell v. Hobby Lobby Stores, ordered the government to offer the very same accommodation to for-profit employers with religious objections to contraceptive coverage. That, the Court suggested, would avoid any violation of the Religious Freedom Restoration Act, which requires that the government not "substantially burden" religious practice unless the "burden" is "narrowly tailored" to advance a "compelling governmental interest." But in Zubik, the non-profits insisted that even that arrangement violates RFRA, because employees would still get contraceptive coverage through their existing insurance. This meant the government was "hijacking" the employers' policies, they said, placing a “substantial burden” on their religious beliefs. (Paul Clement, a lawyer for the challengers, told the Court solemnly that the "accommodation" was every bit as oppressive as requiring Catholic nuns to operate a birth-control clinic in their convent.) The government, and many advocacy groups, responded that an accommodation was one thing; the demand for an exemption even from asking for an accommodation was a radical escalation of the idea of religious freedom.

The dispute is an important one, not only for the thousands of employees who work for religious hospitals, service agencies, and charities, but for the very notion of "free exercise”"of religion in the post-Hobby Lobby world. The challengers seemed on track to punch a large hole in the government's power to enact all kinds of federal social, economic, and welfare programs.

The editors of the liberal Catholic journal Commonweal, who initially jumped on the bishops' "religious freedom" bandwagon with alacrity, now have second thoughts about just how sincere and tenable the bishops' case is, as they hide behind the skirts of the sisters:

The Little Sisters of the Poor, a religious order that cares for the dying and employs non-Catholics, objects to the contraception mandate in the Affordable Care Act, saying it violates church teaching and compels them to cooperate with evil. The Obama administration has properly given the Little Sisters an exemption from the mandate. The exemption requires the Little Sisters to file a one-page form that will transfer the responsibility of providing contraception coverage for employees to insurance companies or the government. The Little Sisters claim that even submitting this exemption form is a substantial burden on their religious liberty. The resolution of this conflict is now in the hands of federal appeals courts, which have been directed by the Supreme Court to find a compromise that balances the government's compelling interests with the least burdensome method of compliance on the part of the plaintiffs.

In the Middle East, Christians face threats to their lives as well as to their religious freedom. In Iraq, Syria, and Libya, Islamic State fighters have frequently murdered Christians, beheading them and sometimes crucifying them. What do the plight of the Little Sisters—whose case has been taken up by a host of conservative activists and given a sympathetic hearing by the highest court in the land—and the fate of persecuted Christians in the Middle East have in common? Besides a shared faith and a noble commitment to live out that faith, there would appear to be few similarities. But if you believe that, says the U.S. Conference of Catholic Bishops, you just don't understand how precarious the rights of American Christians have become in the malign era of same-sex marriage and Obamacare. The USCCB has even made a slick video to educate Americans about those dangers.

But there was one other thing the government asked for and didn't get, which was a clear-cut ruling that would settle the issue once and for all.

"A decision that held the present accommodation inadequate in some respect without fully resolving the RFRA challenges petitioners have presented would thus inevitably lead to uncertainty and continued litigation in the lower courts," the federal government said in its briefing on a compromise last month.

The last thing the Supreme Court wanted to do Monday was be definitive. Uncertainty and continued litigation is exactly what the government -- and women -- got.

"We need, in every community, a group of angelic troublemakers." Bayard Rustin, Quaker gay activist

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I'm a theologian who writes about the interplay of belief and culture. My husband Steve (also a theologian) and I are now in our 47th year together. Though the church has discarded us (and here, here, here, and here) because we insist on being truthful about our shared life, we continue to celebrate the amazing grace we find in our journey together and love for each other.
We live in hope; we remain on pilgrimage....
A note about my educational background: I have a Ph.D. and M.A. in theology from Univ. of St. Michael's College, Toronto School of Theology; an M.A. in English from Tulane Univ.; and a B.A. in English from Loyola, New Orleans.